Why is Mayor Rob Ford in Court?

Today, Mayor Rob Ford testifies as part of a lawsuit that could cost him his job. By this afternoon, it’s likely that whatever happens at court will be all over the news (including right here).

If you haven’t been paying attention to this thing as it developed over the past few months, or some of the details are still fuzzy, we’ve got your crash course right here.How did this all come about?

In 2010, the City’s integrity commissioner found that Ford, at that time still a councillor, had violated council’s code of conduct [PDF] by using his official letterhead to solicit donations from lobbyists and corporations for his private charitable organization, the Rob Ford Football Foundation.

The code of conduct forbids politicians from accepting gifts from lobbyists and their clients; from using political influence for private gain; and from using City resources for non-City business. The integrity commissioner found Ford had done all of those things. At its next meeting, council imposed a penalty: he would have to reimburse $3,150 worth of improper donations.

Ford never paid back the money, even though the integrity commissioner reminded him to do so six times. The matter came to council a second time, in February 2012, after Ford had become mayor. A majority of council voted to rescind the earlier decision to make him repay.

At that February council meeting, Rob Ford spoke during debate on the matter and voted on the relevant motion, and that’s why he’s in trouble today: members of council are supposed to declare a conflict of interest and then recuse themselves from debate when they have a personal, financial stake in the outcome of an issue. (For instance, councillors routinely declare conflicts if they have close family members who are employed by the City. If a councillor’s husband is a librarian, let’s say, that councillor would declare a conflict and refrain from voting on the library budget, which might affect the spouse’s salary, and in turn the household income.)

Lawyer Clayton Ruby brought the conflict-of-interest suit against Ford in March, on behalf of Paul Magder, a Toronto resident. Magder and Ruby allege that by speaking and voting on the reimbursement, Ford used his political power to sway a matter in which he had a financial interest.

The point of the MCIA is to prevent politicians from using their political power in ways that benefit them unfairly. The part that’s relevant to Rob Ford’s case is section five. It bars members of a municipal council from voting on matters in which they have a “pecuniary interest.” (Pecuniary being legalese for “financial.”) It also bars them from participating in official discussion on those matters.

Ruby and Magder think Rob Ford violated those rules in February.

What’s the penalty for a violation of the MCIA?

If Ford were found guilty of violating the MCIA, he would be booted from office—that is the penalty spelled out in the law. The only way he’d get a reprieve is if it could be shown that his breach was inadvertent, an error of judgment, or if the judge is persuaded that the amount of money in question is an insignificant sum—too small to have actually influenced Ford’s actions.

What’s the legal argument against Ford?

We can’t say exactly what will happen during the hearing, but Clayton Ruby’s factum (a factum is a document that lays out the facts of the case from one side’s point of view) contains an outline of what will likely be his argument against Ford.

The main point articulated in the factum is that Ford did have a financial interest in the February 7 vote because the $3,150 reimbursement would have come out of his own pocket. If that’s the case, Ruby argues, Ford did violate the MCIA, and all that remains is to decide whether any of the Act’s exceptions apply to him.

Ruby thinks the exception for “insignificant” financial interest doesn’t apply. According to the factum, Ford’s own reluctance to pay the fine is evidence that the amount is significant and therefore, punishable.

Ruby similarly brushes aside the other possible defenses. Ford’s speech and vote on February 7 weren’t inadvertent, the factum says, because Ford appeared to know exactly what he was doing. For example, the factum points out that in 2010, during the first council vote on the matter, then-Speaker Sandra Bussin warned Ford that voting would put him in conflict. In spite of that, he ended up voting at that meeting, and then again in February 2012, when the matter came to council for the second time. If Ford knew he had a financial interest when he voted, Ruby thinks his actions qualify as deliberate.

As to the error-in-judgment defense—which appears to be the one Ford’s lawyers will pursue—Ruby thinks it doesn’t apply for the following reasons:

Ford has been on council for more than a decade, and should have known his obligations under the MCIA.

He didn’t have the type of office safeguards against conflicts of interest that would be expected of a politician of his stature.

Ford’s actions were part of an identifiable pattern of disregard for his ethical obligations as a member of council.

Even if Ford’s participation in the debate on the fine was laudable (he has said he did it for the kids who benefit from the Football Foundation’s grants), he still broke the law.

What’s the legal argument supporting Ford?

The factum from Ford’s lawyer, Alan Lenczner, lays out the mayor’s probable defense. We summarized it earlier. Here’s that summary again.

Ford’s lawyer is expected to argue that:

The MCIA and its harsh penalties don’t apply to this case, because Ford was voting on a matter subject to council’s own code of conduct, which derives its authority from a different piece of legislation, the City of Toronto Act.

City council didn’t have the authority to levy the $3,150 fine in the first place, because the code of conduct doesn’t allow them to levy fines.

If the judge rejects both those points, Ford’s lawyers can still argue that his mistake was nothing more than an error of judgment. He has declared conflicts in the past (indicating he was familiar with the rules and his obligation to adhere to them). The complexity of the vote confused him, and he didn’t realize he was in the wrong.

Also, $3,150 is insignificant. Ford would never knowingly have jeopardized his job over such a small amount.

Not really. The hearing runs from September 5 to 7, at which point the judge is expected take some time to put together his decision. (We won’t know how long that will take, but it’s anticipated to be in the order of a few weeks.) If the judge does find that Ford violated the MCIA, and that none of the exceptions listed above apply, Ford will need to vacate his office immediately when that decision is rendered.

If things don’t go Ford’s way, he can apply for a stay that would, if granted, allow him to remain in office while he appeals his case to divisional court, but Ford doesn’t automatically get to keep his seat on council by virtue of filing an appeal.

How to stay up-to-date:

We don’t know yet whether or how much live reporting we’ll be able to do from the courtroom. It is up to the judge to decide if reporters will be allowed to use smartphones or laptops, or to publish updates while court is in session. We will have someone on site for the whole day; if we can provide live updates we will, otherwise we’ll have coverage once court concludes for the day.

10:49 AM: Update! The judge has decided that tweeting and liveblogging are permitted, so we are going to be doing that for the rest of the day. You can find our liveblog right here.